Emory Bankruptcy Developments Journal

Volume 28Issue 1

A Tribute to Tony Alvarez II and Bryan Marsal

Introduction

Merriam Mikhail | 28 Emory Bankr. Dev. J. i (2011)

Each year, the Emory Bankruptcy Developments Journal honors an individual who has made a significant impact on the field of bankruptcy law with the Distinguished Service Award for Lifetime Achievement. On March 23, 2011, the Emory Bankruptcy Developments Journal presented Tony Alvarez and Bryan Marsal with the Thirteenth Annual Distinguished Service Award for Lifetime Achievement.

Tribute

Bill Runge | 28 Emory Bankr. Dev. J. 1 (2011)

To mark the occasion of the Thirteenth Annual Distinguised Service Award for Lifetime Achievement, Bill Runge gave a rousing tribute to Tony Alvarez and Bryan Marsal for their significant impact and contributions to the field of bankruptcy law.

Acceptance Remarks

Tony Alvarez | 28 Emory Bankr. Dev. J. 7 (2011)

The Chapter 11 Financial Advisors

Stephen J. Lubben | 28 Emory Bankr. Dev. J. 11 (2011)

It has been observed that large chapter 11 cases have become increasingly “professionalized.” In particular, while debtor’s counsel might once have handled the bulk of the reorganization, the debtor now routinely retains specialized professionals to address specific aspects of its case. This short Article begins the discussion by considering a sample of financial advisors involved in chapter 11 cases filed in 2004

Gelding the Lily: How the Bankrupcty Code’s Promotion of Marriage Leaves It Impotent

Tiffany R. Harper | 28 Emory Bankr. Dev. J. 31 (2011)

This Article challenges the logic of limiting benefits in the Code to married debtors and argues that awarding benefits based on marital status reduces the efficacy of the Code as marriage rates continue to decline in the United States. This Article also explores how the availability of these benefits is dictated by individual states’ definitions of marriage and determination of which of their citizens can legally marry. Thus, the reach and force of the Code is further limited by the discrepancy between individual states’ definitions of marriage and DOMA. Thus, the steady decline in marriage rates and the continued rise in nontraditional familial units leave the Code out of step with American society.

Indubitably Uncertain: Philadelphia Newspapers and the Role of Valuation Uncertainty in Attempted Cramdown of All-Equity Plans

Anthony Sexton | 28 Emory Bankr. Dev. J. 55 (2011)

Chapter 11 of the Bankruptcy Code allows a debtor to confirm a plan over the objection of impaired creditors. This power, commonly known as “cramdown,” is constrained by the Fair and Equitable Rule. After enactment of the current Bankruptcy Code, one part of that rule has been a general prohibition against cramming down all-equity plans on prepetition secured creditors. But recent case law—specifically Philadelphia Newspapers—provides an opening to debtors who wish to strip away a secured creditor’s lien. This Article demonstrates that such all-equity plans should not be confirmed because valuation uncertainty exposes junior and senior creditors alike to unjustifiable risks that are not present in lien retention plans.

Solving Insolvent Public Pensions: The Limitations of the Current Bankruptcy Option

Hannah Heck | 28 Emory Bankr. Dev. J. 89 (2011)

This Comment summarizes current economic factors driving the recent increased likelihood of municipal insolvency, explores the unique taxpayer and voter constituency impacting municipal bankruptcy, and provides a brief background of municipal bankruptcy law. This Comment also proposes changes in local practice and state and federal law that are necessary to allow municipalities in crisis to fairly and effectively manage pension obligations.

Extra! Extra!: Philadelphia Newspapers Jeopardizes Credit Bidding

Merriam Mikhail | 28 Emory Bankr. Dev. J. 135 (2011)

Secured creditors have generally enjoyed the opportunity to credit bid at the public auction of their collateral during bankruptcy proceedings. Recently, however, the Third and Fifth Circuits have authorized unprecedented cramdown plans that allow sales of collateral free and clear of liens to be authorized under § 1129(b)(2)(A)(iii) of the Bankruptcy Code. Consequently, they have permitted secured creditors’ once powerful credit bidding rights, granted in § 1129(b)(2)(A)(ii), to be circumvented. This Comment supports the plausible catch-all reading of § 1129(b)(2)(A) ignored by the majorities in Philadelphia Newspapers and Pacific Lumber.

A “Fundamental” Problem: The Vulnerability of Intellectual Property Licenses in Chapter 15 and the Meaning of § 1506

Daniel A. Nolan IV | 28 Emory Bankr. Dev. J. 177 (2011)

While the United States has been able to protect the growth of intellectual property within its own borders, especially in the context of the Code, the increasingly global economy has left these protections ineffective in international insolvency cases. Current law leaves intellectual property licenses vulnerable to foreign laws that allow debtors to unilaterally and completely cancel the license, contrary to United States law. This severely threatens the continuing growth of intellectual property in the United States. This Comment suggests that § 1506 allows courts to deny comity where needed to protect intellectual property licenses. Doing so will ensure the security of such licenses in a chapter 15 case, thereby promoting a robust licensing market and ultimately encouraging continued investment in the development of intellectual property in the United States.

Anything But Automatic: Dismissal Under § 521

Mantas Valiunas | 28 Emory Bankr. Dev. J. 231 (2011)

This Comment will look at how a narrow reading of § 521(i) leads to an automatic dismissal which encourages abuse of the bankruptcy system by dishonest debtors. While a strict and rigid application of § 521(i) requirements allows dishonest debtors to manipulate the system, it also leads to unfavorable outcomes for honest debtors. If any documents or information have not been filed in a timely manner, then a bankruptcy case may be dismissed automatically. Although there are several solutions, including the promotion of judicial discretion and the use of waiver forms, this Comment suggests an amendment to the Code that will promote fairer results for debtors.